You are here: / / THE NURSING HOME SUED BY DECEDENT’S DAUGHTER AS EXECUTOR OF HER MOTHER’S...

THE NURSING HOME SUED BY DECEDENT’S DAUGHTER AS EXECUTOR OF HER MOTHER’S ESTATE BROUGHT A THIRD-PARTY ACTION AGAINST THE DAUGHTER ALLEGING HER MOTHER’S INJURIES DID NOT RESULT FROM A FALL AT THE NURSING HOME BUT RATHER FROM THE DAUGHTER’S NEGLIGENT FAILURE TO FOLLOW THE NURSING HOME’S INSTRUCTIONS FOR THE HOME CARE AND SUPERVISION OF HER MOTHER; UNDER THE FACTS OF THIS CASE THERE EXISTED NO DUTY OF CARE UNDER WHICH THE DAUGHTER COULD BE HELD LIABLE FOR CONTRIBUTION BY THE NURSING HOME (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Hinds-Radix, reversing Supreme Court, determined plaintiff (Santoro), the daughter of the decedent and the executor of her mother’s estate, did not owe a duty of care to her infirm mother such that Santoro could be sued for contribution by the nursing home her mother’s estate was suing. The decedent was released from the nursing home to reside with Santoro. Subsequently Santoro, as executor, sued the nursing home based upon her mother’s fall at the facility. The nursing home then brought a third-party action against Santoro alleging that the decedent’s injuries stemmed from a fall at Santoro’s home resulting from Santoro’s negligent care and supervision of her mother. The opinion discusses contribution versus indemnification and all possible theories which might impose a duty upon Santoro, but ultimately held no extant duty was applicable to these facts:

There is no common-law duty of a child to care for a parent … . While a statutory duty may be imposed in derogation of common law, the defendant here does not rely on any such statute. However, a duty may also be imposed by contract … . “The general rule is that, where the relationship between the parties is that of parent and child, the law presumes that where there is no proof of a contract under which the services were performed . . . they were rendered gratuitously” … .​ …

… [A] party also may assume a duty to a third party based upon gratuitous conduct. …  [T]he question is whether [the] defendant’s conduct placed [the] plaintiff in a more vulnerable position than [the] plaintiff would have been in had [the] defendant done nothing'” … . When determining whether a cause of action exists, the question is whether the alleged wrongdoer has “launched a force or instrument of harm,” not whether the alleged wrongdoer “stopped where inaction is at most a refusal to become an instrument of good” … . In this case, the defendant alleged that Santoro failed to act in accordance with its instructions—which, in its view, would make her an instrument of good—not that she placed the decedent in a more vulnerable position than if she had done nothing.

Further, a duty may arise ” where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid'” … . However, the defendant cites no duty imposed in derogation of common law. Further, it is not alleged that Santoro secluded the decedent while she was in a helpless state, preventing others from rendering aid. …

The defendant would impose a new duty on those who live with infirm individuals “to use reasonable care” and “be liable for harm caused by the failure to use reasonable care by affirmative act or omission” … . The imposition of such an obligation carries with it public policy considerations of possible negative consequences, since such a general obligation could discourage persons from residing with the infirm, discourage children and infirm parents from living together, and discourage the infirm from attempting to resume independent living … . The circumstances alleged here “provide no justification for creating” such a duty … . Santoro v Poughkeepsie Crossings, LLC, 2019 NY Slip Op 08883, Second Dept 12-11-19

 

You might also like
THE AFFIDAVITS SUBMITTED TO PROVE THE BANK’S STANDING TO BRING THE FORECLOSURE ACTION WERE NOT ACCOMPANIED BY THE RELEVANT DOCUMENTS AND THEREFORE CONSTITUTED INADMISSIBLE HEARSAY (SECOND DEPT).
MOTION TO QUASH SUBPOENA ISSUED TO ATTORNEY WHO REPRESENTED THE ORIGINAL BORROWERS AGAINST PROPERTY SUBJECT TO FORECLOSURE PROCEEDINGS SHOULD NOT HAVE BEEN QUASHED, CIVIL CONTEMPT ACTION AGAINST THE ATTORNEY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA FOR BOTH TYPES OF PROCEEDINGS EXPLAINED (SECOND DEPT).
EXPOSED TREE ROOT OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS. ​
DEFENSE COUNSEL DID NOT OBJECT TO AN ACCOMPLICE’S TESTIMONY ABOUT THE GUILTY PLEA ENTERED BY A NON-TESTIFYING PARTICIPANT IN THE SHOOTING (DEFENDANT WAS THEREBY DEPRIVED OF THE RIGHT TO CONFRONT A WITNESS AGAINST HIM); DEFENSE COUNSEL DID NOT REQUEST THE ACCOMPLICE JURY INSTRUCTION (WHICH REQUIRES CORROBORATION OF THE ACCOMPLICE’S TESTIMONY) OR THE MISSING WITNESS JURY INSTRUCTION; NEW TRIAL ORDERED (SECOND DEPT). ​
SCHOOL DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE KNOWLEDGE OF WATER ON THE FLOOR IN THIS SLIP AND FALL CASE; SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
MOTION TO AMEND THE CAPTION TO CORRECT THE NAMES OF THE PARTIES SHOULD HAVE BEEN GRANTED (SECOND DEPT).
Proper Jury Instructions in False Imprisonment Case Based Upon Detention During the Execution of a Search Warrant Explained
PLAINTIFF ALLEGEDLY INJURED HIS HAND WHEN HE SAW HIS DAUGHTER START TO SLIP OUT OF A SWING ON A SCHOOL PLAYGROUND AND STOPPED THE SWING; THE ALLEGEDLY DEFECTIVE SWING WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURY; THE COURT NOTED THAT THE ASSUMPTION OF THE RISK DOCTRINE DID NOT APPLY TO THIS SCENARIO (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

PLAINTIFFS (CUPID AND ROBINSON) DEMONSTRATED DEFENDANT DRIVER WAS NEGLIGENT... ALTHOUGH DEFENDANT MAY HAVE STOPPED AT A STOP SIGN, HE NEVERTHELESS FAILED TO...